All v. Baijalpur

Judgment

1. Baijalpur, P.S.-Asarganj, P.O.-Amaiya, District-Munger. b. Shushila Devi, Wife of Damodar Prasad Singh, Resident of Village- Harchandri, P.O.-Harchandi, P.S.- Razaul, District- Banka. c. Sita Devi, Wife of Mahesh Mandal, Resident of village-Maheshpur, P.O.- Mirjanhat, P.S.- Aliganj, District-Bhagalpur. d. Sobha Devi, Daughter of Late Isho Devi, Resident of village- Baijalpur, P.S.- Asarganj, P.O.-Amaiya, District-Munger. 2. Smt Parmeshwari Devi, Wife of Sri Birendra Prasad Singh, Resident of Village- Maheshpore, P.S.-Tarapore, P.O.-Parsa, District-Monghyr. 3. Sri Nageshwar Prasad Singh. 4. Sri Maheshwar Prasad Singh. Both sons of Radaha Prasad Singh. Resident of Village-Arma, Thana-Surajgarha, Parganah-Kajra, P.O.-Arma, District-Monghyr. 5. Smt Sumitra Devi, Wife of Kamleshwari Singh, Resident of Village-Banslipta, Thana- Shambhuganj, P.O. Banslipta, Parganah- Sahore, District-Bhagalpur (Heirs of Girdhari Mandal Defendant).

6. a. Santi Devi, Wife of Sri Sahzanand Prasad Singh, Resident of Village-Narhan, P.O.-Keshar, District-Banka. b. Manjusa Devi. c. Munni Devi. Both resident of village- Itahari, P.O.-Fudichak, District-Khagaria.

7. a. Manorma Devi. b. Subhadra Devi. c. Sulauchana Devi. d. Sumitra Devi. e. Lalita Devi. f. Most Bhola Mandal ( Sarswati Devi). Patna High Court FA No.538 of 1977 dt.19-11-2013 2 All resident of village-Itahari, Thana- Parbatta, at present village-Gogri Jamalpore, Parganah- Farkiya, District-Monghyr. 8. Hiralal Singh, Son of Kailash Mandal deceased. 9. Jadunandan Prasad Singh, Son of Ajab Lal Singh. 10. Ambika Prasad Singh. 11. Sunil Prasad Singh. All Resident of Village- Jamalpore, Parganah- Farkiya, District-Monghyr.

12. a. Sweta Bharti, Wife of Late Ashok Prasad Singh. b. Mona Kumari. c. Sona Kumari. Both minor daughters of Late Ashok Prsaad Singh under guardianship of their natural guardian mother Sweta Bharti. All resident of village- Itahari, P.S.-Gogri Jamalpur, District-Khagaria.

13. Udai Kumar Singh. 14. Sanjay Kumar Singh. 15. Vijoy Kumar Singh. 16. Anil Kumar Singh. 17. Krishna Kumar Singh. All resident of village-Gogri Jamalpore, Parganah-Farkiya, District-Monghyr. 18. a. Smt Manti Devi, Wife of Late Ashwani Prasad Singh, Resident of Village- Marhan, P.O.-Khessar, District-Banka. b. Smt Kanti Devi, Wife of Sri Bhupendra Singh, Resident of Village & P.O.- Marror, P.S.-Khagaria, District-Khagaria. c. Amaresh Prasad Singh. d. Naresh Prasad Singh. e. Mithilesh Prasad Singh. All resident of village- Parasa, P.O.-Launa Parsa, P.S.-Tarapur, District- Munger.

19. a. Indu Kumari ,D/o Late Anup Lal Singh, Resident of village- Itahari, Thana- Gogri Jamalpore, Parganah-Farkia, District- Monghyr. b. (i). Pramod Kumar. (ii) Vinay Kumar. (iii)Subodh Kumar Singh. All sons of Kailash Prasad Singh, Resident of Village- Maheshpur, P.O.-Launa Parsa, P.S.-Tarapur, District-Munger, Pin Code-813221.

20. Vishwanath Prasad Singh. 21. Shreenath Singh. 22. Uttam Prasad Singh. All resident of village-Gogri Jamalpore, Parganah-Farkiya, District- Munger. .... .... Respondents. =========================================================== Appearance : For the Appellant/s : Mr. Jay Kumar, Adv. Mr. Binod Kumar Sinha, Adv. Mr. Gopaljee, Adv. Mr. Narayan Singh, Adv. Mr. Devi Das Srivastva, Adv. Mr. Ramadhar Singh, Adv. Patna High Court FA No.538 of 1977 dt.19-11-2013 3 For the Respondent/s : Mr. Madan Mohan -1, Adv. Mr. Vinodanand Mishra, Adv. Mr. Hari Shankar Mishra, Adv. Mr. Kumar Sidheshwar Pd.Singh, Adv. Mr. Surendra Prasad Sinha, Adv. Mr. Bharat Lal, Adv. Mr. J.N. Pandey, Adv. Mr. Shree Prakash Dwivedy, Adv. Mr. Binoy Krishna, Adv. Mr. J.Rai, Adv. Mr. Ravi Bhushan Prasad-1, Adv. Mr R.K.P.Singh, Adv. Mr Ram Bali Jha, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 19-11-2013 Aggrieved by the part dismissal of their suit for partition with regard to the suit properties described in schedule-II of the plaint, the plaintiffs have filed this appeal.

2. The broad essential facts giving rise to the present appeal is that Janki Mandal had four sons namely Ram Kishun Mandal, Ramdhari Mandal, Gridhari Mandal and Ram Mandal. The plaintiffs are the descendants of Ram Mandal inasmuch as the plaintiff no. 1 Sitabati Devi is his widow and plaintiff no. 2 is the daughter of Ram Mandal and plaintiff nos. 3 and 4 are the sons of the plaintiff no. 2.

The defendant no. 1 (since deceased, through L.R.) was Gridhari Mandal and the defendant no. 2 to 14 are the descendants of Gridhari Mandal. The defendant no. 15 to 20 are the descendants of Ramdhari Patna High Court FA No.538 of 1977 dt.19-11-2013 4 Mandal. It is the case of the plaintiffs that all the four sons of Janki Mandal separated and partitioned the family property described in schedule-I of the plaint in the manner that Ram Kishun Mandal became separate with the properties of his share and had thereafter no concern with the three brothers. The remaining three brothers also separated in all respects but continued in joint possession of the family property with defined shares as tenants in common and the cultivation was also done jointly. It is also the case of the plaintiffs that Ram Mandal died thereafter leaving behind the plaintiff no. 1 as his widow who inherited his interest in the family property and continued in joint possession with the defendants. It is further case of the plaintiffs that the agricultural produce from the lands used to be divided in three equal shares appropriate for the purpose of personal use and the remaining portion of the agricultural produce was retained by Ramdhari Mandal as karta and after his death by the defendant no. 1 Gridhari Mandal who became the karta and the same was utilized for payment of rents etc. and also for acquisition of further properties as mentioned in schedule-II of the plaint. The plaintiffs filed the suit for partition of their 1/3rd share in the properties described in schedule-I and schedule-II of the plaint.

3. The defendants appeared in the suit and filed their written statement. The defendant nos. 15 and 17 have filed their joint Patna High Court FA No.538 of 1977 dt.19-11-2013 5 written statement and have contested the suit. Some of the defendants though filed their written statements but have not contested the suit. The contesting defendants admitted the genealogy given by the plaintiffs and also admitted that Ram Kishun Mandal, one of the four sons of Janki Mandal separated from the joint family with his 1/4th share in the property. However, the contesting defendants have specifically denied the separation between the remaining three brothers and have asserted that the three brothers continued to be joint. It is their further case that Ram Mandal died before 1937 in state of jointness with his two brothers Ramdhari Mandal and Gridhari Mandal and his interest devolved upon them by rule of survivorship. It is also their case that the plaintiff no. 1 Sitabati Devi was only entitled to maintenance and was being maintained by the defendants. They have further pleaded that there was partition in the year 1946 among the two brothers namely Ramdhari Mandal and Gridhari Mandal of the entire joint family property and in that partition 35 Bighas of land, mentioned in schedule-B of the written statement was given to the plaintiff no. 1 in lieu of maintenance with further agreement that the said land would return back to the two brothers after the death of the plaintiff no. 1. It has been thus pleaded that there is no unity of title and possession over the suit land between the parties to the suit and the plaintiffs are not entitled to seek partition of the same. Patna High Court FA No.538 of 1977 dt.19-11-2013 6

4. In view of the rival pleadings of the parties, the learned court below framed altogether 8 issues out of which issue no. 6 has been tried as material issue and is as follows:- Issue no. 6- Are the plaintiffs entitled to get the decree of partition as claimed?

5. The learned court below has returned the finding that Ram Mandal husband of the plaintiff no. 1 died in separation from his two brothers Ramdhari Mandal and Gridhari Mandal and after his death his interest in the family property devolved upon his widow the plaintiff no. 1 Sitabati Devi. The learned trial court therefore has held that the plaintiffs are entitled to partition as no partition of the suit properties described in Schedule I of the plaint by metes and bounds has taken place between the parties. However, the learned court below has not accepted the case of the plaintiffs that the properties described in schedule-II of the plaint have been acquired out of the joint family fund and therefore the plaintiffs have been held to be entitled to a decree for partition of their 1/3rd share in respect of the suit properties described in schedule-I of the plaint only. The suit has thus been decreed in part with regard to schedule-I properties and it has been dismissed with regard to the schedule-II properties.

6. As mentioned above, this appeal has been filed by the plaintiffs against the decree of dismissal of their suit with regard to the Patna High Court FA No.538 of 1977 dt.19-11-2013 7 properties mentioned in schedule-II of the plaint. The defendant nos. 15 and 17 impleaded as respondent nos. 20 to 22 in this appeal have filed a cross objection assailing the finding and the judgment and decree of the court with regard to the properties mentioned in schedule-I of the plaint and have prayed for dismissal of the suit of the plaintiff-appellants in entirety.

7. Heard Mr T.N.Maitin, the learned senior counsel for the appellants and Mr Binodanand Mishra, the learned counsel for the respondent nos.20, 22 and 25. Later on Mr Rambali Jha , advocate has also appeared for respondent nos. 23,24 and 25 who are the sons of the respondent no.20 and 22 and has been allowed by order dated

11.11.2013 to adopt the submissions made by Mr Binodanand Mishra, advocate. Mr R.K.P.Singh, advocate has been heard on behalf of respondent nos. 15, 16 and 17.

8. Assailing the finding by the learned court below that the suit property mentioned in Schedule II of the plaint is not joint family property, Mr T.N.Maitin, the learned senior counsel appearing on behalf of the plaintiff-appellants has submitted that the learned court below has ignored material evidence adduced on behalf of the plaintiffs in this regard. It has been urged that the plaintiffs have specifically pleaded that the usufructs from the family properties used to be divided in three shares for the three brothers in the quantum Patna High Court FA No.538 of 1977 dt.19-11-2013 8 appropriate for the consumption of their families and the remaining usufructs used to be retained by the Karta (initially Ramdhari Mandal and after his death Girdhari Mandal) and the sale proceeds of those usufructs were utilized for acquiring the properties mentioned in Schedule II of the plaint. On this basis the learned senior counsel has submitted that the Schedule II properties though in the name of the different members of the family also acquired the nature of the joint family property in which the plaintiffs have a share. However, the learned senior counsel could not point out any evidence in this regard which has been ignored by the learned court below.

9. Mr Binodanand Mishra, advocate, in reply, has submitted that there is no evidence at all on behalf of the plaintiffs to show that a major portion of the usufructs from the family property was retained by the Karta and utilized for acquisition of other properties. It has also been submitted that the properties mentioned in Schedule II of the plaint are the self-acquisition of the defendants and as the plaintiffs have failed to establish by evidence existence of nucleus in the family to rebut the presumption, the property in Schedule II will have to be accepted to be separate self-acquisition of the persons in whose name they stand. However, the learned counsel has strenuously challenged the finding by the learned court below with regard to the properties mentioned in Schedule I of the plaint holding the same to be the Patna High Court FA No.538 of 1977 dt.19-11-2013 9 ancestral joint family properties of the parties to the suit. It has been submitted by the learned senior counsel that a cross objection has also been filed on behalf of the respondent nos. 20 and 22 who were defendant nos.15 and 17 in the suit and who alone contested the suit. It has been contended by the learned counsel that admittedly Ram Mandal husband of the plaintiff no.1 died much before 1937 and therefore the plaintiff no.1 was only entitled to maintenance from the joint family property and the interest of her husband Ram Mandal devolved upon the remaining two brothers by survivorship. It has been urged that no cogent evidence has been led on behalf of the plaintiffs to establish that Ram Mandal died in separation from her two brothers, and to the contrary the P.W.2 and P.W.6 in their depositions have accepted that Ram Mandal was joint with his two brothers. It has also been argued that the fact that the plaintiff no.1 was only entitled to maintenance is also proved from the deposition of the Punches through whom the partition was effected in the year 1946 whereby the plaintiff no.1 was allotted 35 bighas of land in lieu of her maintenance. It has been emphasized that the learned court below has wrongly discarded the evidence of the Punches and also the admission of the plaintiffs in their depositions and have wrongly allowed the claim of partition of 1/3rd share to the plaintiffs in Schedule I properties. The learned counsel has placed the portions of the depositions of the witnesses as Patna High Court FA No.538 of 1977 dt.19-11-2013 10 well as the judgment of the learned court below with his comments to buttress his submissions and prayed for the dismissal of the suit in entirety.

10. Mr R.K.P.Singh, advocate who has appeared for respondent nos. 15, 16 and 17 has submitted that although no cross objection has been filed by the respondent nos. 15 to 17 and they have also not joined in filing the cross objection with the respondent nos. 20 and 22, an opportunity must be granted to the respondent nos.15 to 17 to support the cross objection filed by the respondent nos.20 and 22. The learned counsel has placed various provisions of law and has contended that a respondent who has not filed appeal or cross objection can still be heard in support of the cross objection filed by the other respondents.

11. In view of the rival submissions of the parties in appeal and cross objection, the following points emerge for determination:- (I) Whether the plaintiffs are entitled to 1/3rd share in the suit properties described in Schedule I and II of the plaint? (II) Whether the respondent nos.15 to 17 who have not preferred appeal or cross objection against the part of the judgment and decree in favour of the appellants can still be allowed to assail the same and be heard in support of the cross objection filed by the respondent nos. 20 and 22? Patna High Court FA No.538 of 1977 dt.19-11-2013 11 Point No.1:

12. The genealogy of the family is not in dispute between the parties according to which Janki Mandal had four sons namely Ram Kishun Mandal, Ramdhari Mandal, Girdhari Mandal and Ram Mandal. It is also not in dispute between the parties that Ram Kishun Mandal had separated after the death of Janki Mandal with his 1/4th share in the joint family properties. The fact is also not in dispute that Ram Mandal died before 1937 leaving behind the plaintiff no.1 Sitabati Devi as his widow. However, the parties are at discord on the issue as to whether Ram Mandal died in the state of jointness or separation with his two brothers Ramdhari Mandal and Girdhari Mandal. According to the plaintiffs all the four brothers separated and their shares were defined but the three brothers Ramdhari Mandal , Girdhari Mandal and Ram Mandal continued to have joint cultivation and continued in joint possession of the suit properties as tenants in common. The contesting defendants to the contrary have come out with the case that Ram Mandal died in state of jointness with his two brothers Ramdhari Mandal and Girdhari Mandal and after his death his interest in the family property devolved upon his remaining two brothers by survivorship and his widow was only entitled to maintenance from the joint family properties. It is also the case of the defendants that later in the year 1946 the partition had taken place Patna High Court FA No.538 of 1977 dt.19-11-2013 12 between the two brothers Ramdhari Mandal and Girdhari Mandal through Punches wherein the joint family properties were partitioned among the two brothers and the plaintiff no.1 was allotted 35 bighas of land in lieu of maintenance with the condition that the said land would revert back to the two brothers after the death of the widow Most Sitabati Devi.

13. The suit properties have been mentioned in the plaint in two schedules. The Schedule I contains the details of the ancestral joint family properties and the Schedule II contains the accretions to the joint family property though joint family fund.

14. On the controversy regarding the death of Ram Mandal in state of jointness or separation with his two brothers, both the plaintiffs and the contesting defendants have led oral and documentary evidence. On behalf of the plaintiffs, the plaint of T.S.No.10/1950 has been brought in evidence as Ext.2. The judgment passed in the said suit and in F.A.No.238/1951 thereafter have been brought in evidence as Ext.5 and Ext.5(a). The decree passed in the said suit has been marked as Ext.6 and the appellate decree by the High Court in F.A.No.238/1951 has been marked as Ext.6 and Ext.6 (a). The Vakalatnama filed in the said suit has been marked as Ext.7. From the perusal of the aforesaid exhibits it transpires that the T.S.No.10/1950 had been filed by Ramdhari Mandal as plaintiff no.1, Girdhari Mandal as plaintiff no.2 Patna High Court FA No.538 of 1977 dt.19-11-2013 13 and Most Sitabati Devi as plaintiff no.3 alongwith the sons of Ramdhari Mandal and Girdhari Mandal as other plaintiffs for declaration of their title over 12 annas share in the suit land with further declaration that the decree in Partition Suit No.21/21 of 1944/45 was not binding upon them. The averments have been made in paragraph 1 and 2 of the plaint to the effect that there had been separation among the four brothers and they had been separately continuing in possession of their shares. In the judgment of the said suit (Ext.5) also the said fact has been noticed by the court that “the plaintiff no.1 has been living jointly with his sons and plaintiff no.2 has been living jointly with his sons plaintiff nos. 1 to 3 and Ram Kishun Mandal (deceased) was separate in mess from each other from a very long time and they had also been in separate possession of their respective shares”. Although the contesting defendants have stated in their pleading that there had been partition among the two brothers Girdhari Mandal and Ramdhari Mandal wherein the plaintiff no.1 Sitabati Devi had been allotted only 35 Bighas of land in lieu of her maintenance but the fact relating to this partition in the year 1946 is absent in the plaint (Ext.2) of T.S.No.10/1950 obviously filed later on rather the contrary fact has been stated that all the four brothers had separated long back. It is also significant to notice here that the plaintiff no.1 Sitabati Devi of this suit was plaintiff no.3 in Patna High Court FA No.538 of 1977 dt.19-11-2013 14 T.S.No.10/1950 alongwith Ramdhari Mandal , Girdhari Mandal as plaintiff no.1 and 2 where the relief for declaration of title of the plaintiffs over the suit properties of that suit had been together prayed and decreed by the court and the said decree had also been affirmed by judgment and decree [Ext.5(a) and Ext.6(a)] in F.A.No.238/1951 by the High Court wherein also the fact had been taken into notice in the judgment [Ext.5(a)] that “ the four sons of Janki Mandal were separate from each other and that each had one-fourth share in the joint family property”. It has not been disputed by the learned counsel for the contesting defendants that the present suit properties were not the subject matter of the T.S.No.10/1950. The statement made in the plaint of this suit regarding separation among four brothers will definitely bind the contesting defendants as their admission of the said fact which they have failed to explain away. The inevitable inference from these documents relating to T.S.No.10/1950 is that the plaintiff Ram Mandal died in separation from his brothers and the plaintiff no.1 was not maintenance holder as claimed by the defendants but had inherited interest of her husband Ram Mandal, otherwise there was no reason for Ramdhari Mandal and Girdhari Mandal to join the present plaintiff no.1 Sitabati Devi with them as plaintiff in the suit seeking declaration of their title over the family properties.

15. However, to counter the impact of these documentary Patna High Court FA No.538 of 1977 dt.19-11-2013 15 evidence, the defendants have adduced in evidence the plaint of T.S.No.15/1934 marked as Ext.D, the judgment passed in the said suit marked as Ext.J, the Vakalatnama executed by the plaintiffs of that suit marked as Ext.C and the deposition of Ramdhari Mandal in that suit marked as Ext.H. The averments made in the plaint (Ext.D) of T.S.No.15/1934 is to the effect that Ram Mandal died in jointness with his brothers Ramdhari Mandal and Girdhari Mandal and it has been further stated that his interest has devolved by survivorship upon the two brothers. The statement to the same effect has been made in the deposition (Ext.H) by Ramdhari Mandal in the said suit. It appears from the plaint (Ext.D) of T.S.No.15/1934 that Ramdhari Mandal was plaintiff no.1, Girdhari Mandal was plaintiff no.2 and Most Sitawati Devi was plaintiff no.3 in that suit. Manifestly the averments made in the plaint as well as the deposition in that suit by Ramdhari Mandal are not in consonance with the case of the contesting defendants that the plaintiff no.1 Most Sitawati Devi had no title in the family property and was only a maintenance holder as there is also no explanation by the defendants to the glaring fact that if the plaintiff no.1 Most Sitawati Devi was only a maintenance holder having no title in the suit property then how she had been impleaded as plaintiff in that suit which was filed for setting aside sale of the family property in execution of decree obtained by the defendants, with specific Patna High Court FA No.538 of 1977 dt.19-11-2013 16 assertion that the plaintiffs’ right, title and interest in the suit land had not been affected by the said auction sale. It appears from the plaint ( Ext.D) that Most Sitawati Devi had also verified the plaint as plaintiff no.3 in that suit and had executed Vakalatnama (Ext.C) as one of the plaintiffs. If she was only a maintenance holder there was no need for Ramdhari Mandal and Girdhari Mandal (the brothers of her deceased husband) to implead her also as a plaintiff in the suit the relief wherein was based on the title of the plaintiffs over the suit land.

16. From the conjoint scrutiny of the documentary evidence relating to T.S.No.10/1950 adduced on behalf of the plaintiffs and those of T.S.No.15/1934 adduced on behalf of the contesting defendants, it becomes perceptible that Ram Mandal (husband of the plaintiff no.1) died in separation from his two brothers Ramdhari Mandal and Girdhari Mandal and after his death his separate interest in the family property devolved upon his widow (the plaintiff no.1 Most Sitawati Devi).

17. On behalf of the plaintiffs’ the sale deeds (Ext.3 series) have been brought in evidence from perusal of which it appears that those sale deeds have been executed by the plaintiff no.1 Most Sitawati Devi alongwith Girdhari Mandal and the descendants of Ramdhari Mandal who was by then dead. These sale deeds have been executed in the year 1963 with specific statement in the recitals that Patna High Court FA No.538 of 1977 dt.19-11-2013 17 the vendors have sold their separate interest in the property under the sale. To wit it has been stated in Ext.3 whereby 2 bigha 5 katha and 13 ½ dhur of land has been transferred by sale by Girdhari Mandal , descendants of Ramdhari Mandal and the plaintiff no.1 Most Sitawati Devi that “ [kkl gd fgLlk viuk viuk dsokyk djrs gSa ”. There is again no explanation by the learned counsel for the contesting defendants to the fact as to why the plaintiff no.1 Most Sitawati Devi who was only a maintenance holder and had no title in the family property joined as one of the vendors alongwith two brothers and their descendants in execution of the sale deed for the family property in the year 1963. This fact further has also direct adverse bearing on the case of the contesting defendants that there had been a partition among the two brothers Ramdhari Mandal and their branches in the year 1946 and in that partition the plaintiff no.1 was given 35 bighas of land in lieu of maintenance with further agreement that the said land would revert back to the two brothers and their descendants after her death.

18. As discussed above, the averments made in the plaint of T.S.No.10/1950 (Ext.2) as well as the execution of the sale deeds (Ext.3 Series) by the plaintiff no.1 alongwith Ramdhari Mandal and Girdhari Mandal or their descendants manifestly create concavity in the case of the contesting defendants regarding the death of Ram Mandal (husband of the plaintiff no.1) in jointness with his two Patna High Court FA No.538 of 1977 dt.19-11-2013 18 brothers and partition in the year 1946 later on wherein the plaintiff no.1 is said to have been allotted 35 bighas of land in lieu of maintenance. However, as much emphasis has been laid by the learned counsel on behalf of the contesting defendants on the oral evidence particularly the deposition of the Punches in the said partition, it is pertinent to evaluate the same also. The Punches have been examined as D.W.3,4,9,12 and 19. D.W.3 Bhola Nath Mishra has stated in examination-in- chief that there had been partition between Ramdhari Mandal and Girdhari Mandal in the year 1946 and in that partition he was a Punch. He has further stated that in that partition 35 bighas land was given to Most Sitawati Devi (plaintiff no.1) in lieu of maintenance and a document with the signature of the parties as well as Punches was prepared and given to Most Sitawati Devi. In cross objection however he has stated that the said partition was done orally and has named the other Punches also. He has further accepted that no document appointing Punches for effecting partition was prepared and the two brothers themselves divided their land in equal half share. He has also accepted that he did not go on the lands for effecting partition. D.W.4 Jaikant Mishra has also accepted that he was a Punch in the partition but no Panchnama was prepared and the two brothers partitioned their properties themselves by convenience. He has further stated that the allotment of lands was not recorded in paper. He has Patna High Court FA No.538 of 1977 dt.19-11-2013 19 also accepted that although the Punches asked for registration of the document with regard to the lands allotted to Most Sitawati Devi in lieu of maintenance but the document in that regard was prepared only on a paper without stamp and the parties or Punches did not retain the copy of the said document. Similar statement has been made by the other Punch D.W.9 Hero Singh who has also expressed his inability to state as to how much land was allotted in respective shares of two brothers in the different villagers. D.W.12 Banarsi Singh was also one of the Punches in the partition but has said that the two brothers themselves partitioned their properties to the extent of half and half. He has also expressed his inability even to describe the area of the land allotted in the shares of the two brothers. D.W.19 Sahdeo Singh is also said to be one of the Punches in the partition. However, he has accepted that he is a close relative of the parties. He has also further disclosed that Ramdhari Mandal and Girdhari Mandal obtained a receipt from Most Sitawati Devi after handing over the document relating to allotment of 35 bighas of land to her in lieu of maintenance. It is significant to mention here that the said receipt has not been produced by the defendants in the suit and there is also no cogent explanation for its non-production although, the said receipt was apparently a crucial evidence to establish the fact of partition and also the fact that the plaintiff no.1 Most Sitawati Devi was entitled to Patna High Court FA No.538 of 1977 dt.19-11-2013 20 maintenance and in lieu of which she was given 35 bighas of land.

19. On behalf of the defendants mortgage deeds and sale deeds (Ext.A and Ext.B Series) have been adduced in evidence to show that the properties of the family have been dealt with by the different members of the family and the boundary mentioned in those deeds support the case of the partition in the year 1946 as claimed by the defendants. However, the perusal of these mortgage deeds and sale deeds does not lead to the interference that there had been partition by metes and bounds between the parties. Moreover, these documents of transfer are not sufficient to discard the statements made in the plaint of T.S.No.10/1950 (Ext.2) where this fact of partition and the allotment of only 35 bighas of land to the plaintiff no.1 in lieu of maintenance had not been mentioned and to the contrary the declaration of title over the land of the family had been obtained by Ramdhari Mandal and Girdhari Mandal jointly with the plaintiff no.1.

20. The learned counsel on behalf of the contesting defendants has also failed to point out any special feature in the depositions of other witnesses examined on behalf of the contesting defendants to reach to a different conclusion than that of the trial court. Even otherwise also from the perusal of the depositions of the witnesses of the defendants it is difficult to infer that there had been partition by metes and bounds of the suit properties between the parties in the year Patna High Court FA No.538 of 1977 dt.19-11-2013 21 1946 and the T.S.No.10/1950 had been filed Ramdhari Mandal and Girdhari Mandal alongwith Most Sitawati Devi with wrong statement of facts.

21. The learned counsel for the contesting defendants has laid emphasis that P.W.2 and P.W.6 in their depositions have admitted that Ram Mandal died in jointness with his two brothers and has placed paragraph 2 of the deposition of P.W.2 and paragraph nos. 3,4 and 5 of the deposition of P.W.6. It would be pertinent here to mention that the plaintiffs have stated in the plaint that all the four brothers separated and their shares in the family property were defined but only Ram Kishun Mandal became separate in all respects with his 1/4th shares and the remaining 3 brothers Ramdhari Mandal and Girdhari Mandal continued with joint cultivation with their possession over the lands in definite shares as tenants in common. It has also been stated that the usufructs from the joint cultivation used to be divided in three shares among the three brothers. P.W.2 Laxmi Prasad Yadav has stated in his examination-in-chief that “ jke fd”kqu eaMy lc Hkkb;ksa ls vyx Fks A ckdh rhuksa HkkbZ [kkuk & ihuk] dkj & ckj vyx & vyx Fkk ij tehu lc lkFk tksr & vkckn gksrk Fkk ---A bl tehu dks eSa 22 & 23 o’kZ ls cWaVkbZ tksrrk Fkk A mit dk vk/kk eSa ysrk Fkk vk/kk dk rhu fgLlk gksrk Fkk ,d fgLlk lw;Z ukjk;.k eaMy dks] ,d fgLlk fxj/kkjh eaMy dks vkSj ,d fgLlk ekslekr lhrkorh nsoh dks nsrk Fkk ---** In cross examination he has stated that “ … jke fd”kqu eaMy dk fgLlk dk Patna High Court FA No.538 of 1977 dt.19-11-2013 22 tehu vyx dj fn;k x;k ckdh rhu HkkbZ beekby jgs rhuksa HkkbZ ds chp ckWaV dk loky dHkh ugha mBk A ckdh rhu HkkbZ ds chp dHkh cWaVokjk ugha gqvk A

22. The P.W.6 is the plaintiff no.1 herself. She has stated in her examination-in-chief that “ckdh rhuksa HkkbZ dk [kkuk & ihuk vyx &vyx FkkA rhuksa HkkbZ vyx & vyx ?kj esa jgrs Fks A rhuksa HkkbZ dk tksr & vkckn lkFk gksrk Fkk A mit iSnkokj rhuksa HkkbZ ckWaV ysrs Fks **A In her cross examination also there is nothing to lead to the inference that she has admitted that there brothers continued as joint tenants and not as tenants in common. The submission in this regard by the learned counsel for the contesting defendants clearly appear to have been made without going through the entire deposition which would have clarified the position that the statement of jointness by the P.W.2 and P.W.6 have been made in the context of jointness of the parties as tenants in common with defined shares and there is nothing inconsistent in their depositions with the case as pleaded.

23. The factual scenario which emerge therefore after the studied scan of the evidence of the parties is that Ram Mandal was separate from his two brothers at the time of his death and his interest in the family property devolved upon his widow Most Sitawati Devi (Plaintiff no.1) who thereafter continued in joint possession with Ramdhari Mandal and Girdhari Mandal as tenants in common with defined share. Patna High Court FA No.538 of 1977 dt.19-11-2013 23

24. It has not been disputed by the contesting defendants that the land described in Schedule I of the plant are the ancestral properties of the parties. Therefore there is no impediment in holding the plaintiffs to be entitled to 1/3rd share in the property mentioned in Schedule I of the plaint. However, it is entirely a different case with regard to the properties mentioned in Schedule II of the plaint which, according to the plaintiffs, have been acquired in the names of the different members of the family but out of joint family fund. The contesting defendants have pleaded in this regard that the properties in Schedule II of the plaint have been acquired by the different members of the family out of their own separate income. In view of the specific case of the plaintiffs that the joint status of all the four brothers stood disrupted long back, there is clearly no scope for the plaintiffs to come out with the case of existence of a joint family fund or nucleus in the family. However the plaintiffs in the plaint have tried to wriggle out of this situation by pleading that the cultivation of the three brothers used to be done jointly and the usufructs used to be divided in three equal quantity appropriate for the personal consumption of the three branches and the remaining usufructs used to be retained by Ramdhari Mandal and later on by Girdhari Mandal. It has thus been pleaded that the lands mentioned in Schedule II of the plaint have been acquired after the sale of the usufructs which used to be retained by them. Patna High Court FA No.538 of 1977 dt.19-11-2013 24

25. The deposition of the plaintiff no.1 as P.W.6 however does not support this case of the plaintiffs when there is no statement at all to corroborate this fact. The other witnesses examined on behalf of the plaintiffs have also deposed that the entire produce of the lands used to be divided equally among the branches of the three brothers and none of the witnesses have supported the case of the plaintiffs that a part of the total produce used to be retained for the benefit of the three branches. The learned senior counsel on behalf of the plaintiffs has also failed to point out any cogent evidence in this regard adduced on behalf of the plaintiffs. These facts pronouncedly reveal that Schedule II properties are not the joint family properties of the parties in which the plaintiffs have got a share and there is substance in the case of the contesting defendants that those properties belong exclusively to the persons in whose name they stand as their self- acquisitions.

26. For the above reasons and discussions it is held that the plaintiffs are entitled to 1/3rd share in the properties mentioned in Schedule I of the plaint and they have got no share in the properties mentioned in Schedule II of the plaint. The finding by the learned court below in this regard is affirmed and the plaintiffs are accordingly held entitled to partition of their 1/3rd share only in the properties mentioned in Schedule I of the plaint. The point no.1 is accordingly Patna High Court FA No.538 of 1977 dt.19-11-2013 25 decided. Point No.2:-

27. Mr R.K.P.Singh, the learned counsel appearing for the respondent nos.15,16 and 17 has submitted that he should be allowed an opportunity of hearing in support of the cross objection filed by the respondent nos.20 and 22.

28. From the records it appears that the suit was mainly contested by the defendant no.15 Surynarayan Singh son of Ramdhari Mandal and defendant no.17 Narayan Singh son of Surynarayan Singh. These defendants no.15 and 17 have been impleaded as respondent nos. 20 and 22 in this appeal respectively. It further transpires that the defendant no.1 Girdhari Mandal , defendant no.3 Bhola Mandal son of Girdhari Mandal and defendant no.4 Hiralal Singh son of Kailash Mandal (deceased son of Girdhari Mandal) though had filed joint written statement but did not contest the suit. It also transpires that the defendant no.1 Girdhari Mandal died during the pendency of the suit and his daughters were substituted as defendant nos. 1(k) to 1(ch). Out of them, the defendant no.1(k) had filed her separate written statement and supported the case of the plaintiff and also deposed as P.W.8 on behalf of the plaintiffs. It is thus clear that only the two descendants of Ramdhari Mandal i.e. defendant nos.15 and 17 have contested the suit and have filed the cross objection in Patna High Court FA No.538 of 1977 dt.19-11-2013 26 this appeal assailing the judgment and the decree by the learned court below in favour of the plaintiffs with regard to the properties mentioned in Schedule I of the plaint.

29. The scope and ambit of right to take a cross-objection has been firmly delineated by a three Judges bench of Hon’ble Apex Court in the case of Municipal Corporation of Delhi Vs Intnl. Security and Intelligence Agency Ltd. , AIR 2003 SC 1515 and their Lordships have observed as follows:- “… Right to prefer cross objection partakes of the right to prefer an appeal. Thus taking any cross objection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking cross objection. The substantive right is the right of appeal; the form of cross objection is a matter of procedure…” Their Lordships have further ruled as follows:- “… The cross objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of notice of the appeal enabling him putting in issue for Patna High Court FA No.538 of 1977 dt.19-11-2013 27 consideration of the appellate court the same grounds which he could have otherwise done by way of filing an appeal….”

30. From the aforesaid dictum by the Apex Court it is clear that if a party aggrieved by the part of the judgment and decree has failed to prefer a regular appeal against the same, he has been granted a second opportunity to assail the said judgment and decree by preferring a cross objection but that too within the prescribed time frame but the law does not provide for a third opportunity to such a party to assail the said judgment and decree by adopting and supporting the cross objection already filed by another party.

31. Mr Singh , the learned counsel has put emphasis on the provisions contained in Order 41 Rule 4 and Order 41 Rule 33 CPC in support of his contention to have a legal right to adopt and support the cross objection of another party in the appeal but this submission is also misconceived because those provisions are only enabling provisions to be exercised by the Apex Court at the stage of the judgment and by no stretch those provisions can be said to enable a party, who is required by law to prefer an appeal or cross objection against the part judgment and decree against him within the prescribed period of limitation, to assail the same circumventing the provisions of Section 96 and Order 41 Rule 22 CPC as well as limitation Act. A non-appealing respondent who has also failed to file cross objection, Patna High Court FA No.538 of 1977 dt.19-11-2013 28 thus, cannot be allowed to adopt and support the cross objection filed by the other respondent/respondents and that too at the stage of final hearing of the appeal.

32. From the records also it appears that the respondent nos.15,16 and 17 are the sons of the defendant no.3 Bhola Mandal son of Girdhari Mandal and were impleaded as minor defendant nos.15,16 and 17 in the suit. It also appears from the record that by order dated

04.04.1995 these respondents were accepted as majors respondents in this appeal and their guardian was accordingly discharged but even thereafter they failed to prefer appeal or cross objection if they were aggrieved by the part of the judgment and decree against them. It also further transpires that their father defendant no.3 Bhola Mandal son of Girdhari Mandal though had filed a written statement but did not contest the suit. These respondents no. 15,16 and 17 are the descendants of Girdhari Mandal alongwith other such respondents who have not contested the suit nor preferred any appeal or cross objection against the part judgment and decree against them. In this fact-situation, I do not find substance in the submission by Mr Singh, the learned counsel for the respondent nos. 15,16 and 17 to allow him to make his submissions praying that the cross objection filed by the respondent nos.20 and 22 (descendants of Ramdhari Mandal) be allowed and more so when the learned counsel appearing on behalf of Patna High Court FA No.538 of 1977 dt.19-11-2013 29 the cross objectors has made his submissions in support of the cross objection and the learned counsel representing respondent nos. 23,24 and 25 has also later on appeared and adopted the submissions made in the appeal as well as in cross objection by the learned counsel for the cross objectors. The point no.2 is accordingly decided.

33. In result, this appeal is dismissed and the cross objection is also dismissed. The judgment and decree passed in T.S.No.25/1969 by the court of Sub Judge II, Munger is upheld. In the facts and circumstances of the case there shall be no order as to cost. Devendra/ Nitesh |__| U |__| T (V. Nath, J)